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Foie Gras Lawsuit Not Barred by Anti-SLAPP Claim

By Mark Wilson, Esq. on March 19, 2015 | Last updated on March 21, 2019

Even though a federal district court found California's foie gras ban was pre-empted by federal law, federal district court orders aren't necessarily binding on nonparties, so the federal case may have to wait for the Ninth Circuit to step in.

But earlier this month, the First District Court of Appeal affirmed a state trial court decision that would let a lawsuit by the Animal Legal Defense Fund (ALDF) proceed against a Napa restaurant that served foie gras in violation of the law.

I'll Show You

ALDF was one of the advocates for the original foie gras ban, which the legislature enacted in 2004 and which became effective in 2012.

Kenneth Frank, a chef at the fancy Michelin-starred restaurant La Toque, has been vocal about his opposition to the foie gras ban. In defiance of the statute, he gave foie gras to diners even after the ban, but claimed he wasn't "selling" or "producing" foie gras because he gave it to customers for free.

ALDF filed a lawsuit based on California's Unfair Competition Law, and rather than request damages, ALDF sought only an injunction ordering La Toque to stop serving foie gras. Frank and La Toque made a motion to strike the complaint under the state's anti-SLAPP law. That motion to strike is at issue here.

A Probability of Success

SLAPP stands for "strategic lawsuit against public participation," and is a strategy whereby a plaintiff sues a defendant in order to use the threat of costly litigation to silence the defendant's lawful speech on a matter of public interest that implicates the plaintiff's conduct. That's what Frank claimed was going on here: ALDF, aware of Frank's pro-foie gras opinions, used the lawsuit to silence him and prevent him from criticizing the new law.

The trial court didn't think very much of that argument, and neither did the Court of Appeal. The Court of Appeal did, however, assume that Frank's act of giving away foie gras was "conduct in furtherance of speech," but found that Frank hadn't shown a probability of success on the merits.

For one, contrary to Frank's contention, the court found ALDF did have standing to bring a suit because it spent money "to investigate or combat the defendant's misconduct" independent of the litigation. In this case, ALDF spent time and money trying to goad Napa police into enforcing the law, to no avail.

The court also found that there was a probability ALDF could prove that Frank unlawfully "sold" foie gras in violation of the statute, despite his contention that he wasn't selling anything. There's at least an argument to be made that a "sale" doesn't require just the exchange of money for goods or services where something is provided for free as a consequence of purchasing something else (like the foie gras, which was offered once a customer purchased a "tasting menu").

This isn't nearly the end of the case, which will go back to the trial court for adjudication on the actual merits.

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